Is Roy Moore guilty beyond reasonable doubt?

Leigh Corfman says that she was fourteen years old and waiting with her mother outside a courtroom before a custody hearing when Roy Moore, then thirty-two and an assistant district attorney, offered to stay with Corfman while her mother went into court. Corfman says Moore used that opportunity to get her phone number, and subsequently took her out on several dates. On one of those occasions, he took her to his home, undressed her down to her underwear, undressed himself to the same extent, fondled her through her bra and panties, and attempted to put her hand on his genitals.

If what Corfman says is true, Moore committed a felony under Alabama law (which hasnâ€™t changed in the meantime).Â Moore says that none of it happened: â€œI never knew this woman. I never met this woman.â€

Mooreâ€™s defenders say that he ought to be considered innocent until proven guilty, and that a â€œmere accusationâ€ (as Donald Trump called it) shouldnâ€™t block Mooreâ€™s election to the U.S. Senate. â€œItâ€™s just he-said, she-saidâ€ is the favored phrase. (Moore and his friends also want to ignore the three other juvenile but barely legal girls who say he took them out and kissed them.)

As Mitt Romney among others has pointed out, this is absurdly confused; itâ€™s an attempt to apply courtroom standards outside their proper realm. No one thinks an ordinary political charge needs to be proven beyond reasonable doubt before voters take it into account, and thereâ€™s no reason why a charge that happens also to be felony should be any different. (Moore’s attempt, and that of his supporters, to blame the Washington PostÂ for concocting “fake news,” while it might be effective political rhetoric, lost all of its logical force when the Wall Street JournalÂ re-interviewed the Post‘s sources and found that all of them confirmed that the Post had accurately reported their statements.)

Even if this were a criminal trial, Moore might well be convicted. Leigh Corfman’s sworn testimony would be sufficient to establish a prima facie case. It would then be up to the jury to weigh the credibility of the accusation against the credibility of the denial and decide whether they were convinced, beyond reasonable doubt, that the Moore was guilty. Sometimes the jurors decide that they are so convinced, even if itâ€™s simply the bare word of the accuser against the bare word of the complainant: in a mugging, for example, there may be no other witness or physical evidence. If the victim has no apparent motive to lie â€“ while the accused has the strongest of motives, the desire to escape a felony conviction â€“ it may not be unreasonable for a jury to decide that the accusation is convincing enough to convict.

But Moore’s position is actually much worse than that of our hypothetical robbery suspect.

Leigh Corfman is the only person who says Moore fondled her. But sheâ€™s not the only witness to the pickup outside the courtroom; her mother, Nancy Wells, was also there. And Nancy Wells corroborates that part of her daughter’sÂ story; she recalls thinking how nice it was for this young gentleman to offer to take care of her daughter.

Moore, however, denies not just the fondling, but any sort of contact with Leigh Corfman at all. On that point, itâ€™s not his word against hers; he is flatly contradicted by two witnesses, not one. And again, his motivation for lying is obvious, while theirs is obscure; Leigh Corfman, for example is a Republican who voted for Trump, which makes it less likely that she is trying to derail Mooreâ€™s political career on partisan or ideological grounds. (This is very unlike the typical date-rape case, where the defense is consent and the complainant may have strong reasons to want to deny that consent was given even if it was.)

Once a juror had convinced himself, based on the testimony of not one witness but two, that Moore was lying about the pick-up, then the maxim â€œFalsus in uno, falsus in omnibusâ€ would apply. As one standard jury instruction says, â€œIf you find that any witness has intentionally testified falsely as to any material fact, you may disregard that witness’s entire testimony.â€ If the jury chose to disregard Mooreâ€™s testimony, then it would be left only with Leigh Corfmanâ€™s sworn word as evidence. The uncontradicted testimony of a single witness may easily constitute proof beyond reasonable doubt.

Moreover, while Mooreâ€™s denial of any contact with Corfman is at least self-consistent, a reasonable juror could regard the transcript of his interview with Sean Hannity as casting further doubt on his veracity; he starts by saying that all the allegations about teenagers are â€œcompletely false,â€ but then says he doesnâ€™t remember whether or not he dated and kissed a seventeen-year-old who says he picked her up when he addressed her high-school civics class: â€œNo but I don’t remember going out on dates. I knew her as a friend. If we did go on dates then we did. But I do not remember that.â€ With respect to still another woman who says he plied her with alcohol when she was eighteen and therefore under the legal drinking age, he replies that he couldnâ€™t have done so because they were in a â€œdryâ€ county and he recalls that she was nineteen. (Thatâ€™s a second case in which someone specifically remembers Moore committing an illegal act, and he remembers otherwise.)

Asked about whether he in fact dated girls as young as seventeen, Moore equivocates: â€œNot generally, no. If did, you know, I’m not going to dispute anything but I don’t remember anything like that,â€ a statement that seems to be at great variance with his initial blanket denial. So does his later response about kissing one seventeen-year-old in particular: â€œI don’t remember specific dates. I do not and I don’t remember if it was that time or later. But I do not remember that â€¦ No but I don’t remember going out on dates. I knew her as a friend. If we did go on dates then we did. But I do not remember that.â€ (Another version of the transcript has Moore saying that dating teens â€œwould have been outside my customary behaviorâ€: again, a long way from “completely false.”)

So â€“ even putting aside the point that the criminal-law standard of proof doesnâ€™t apply to a political campaign â€“ there is ample evidence for the proposition that Roy Moore, as a thirty-two-year-old assistant district attorney, molested a fourteen-year-old girl. The prisons are full of people convicted on much less proof.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out.
Books:
Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken)
When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The EconomistAgainst Excess: Drug Policy for Results (Basic, 1993)
Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989)
UCLA HomepageCurriculum Vitae
Contact: Markarkleiman-at-gmail.com
View all posts by Mark Kleiman

16 thoughts on “Is Roy Moore guilty beyond reasonable doubt?”

One additional point: Rule 404(b) of the Alabama Rules of Evidence (which is substantively the same as Rule 404(b) of the Federal Rules of Evidence) provides, in pertinent part that: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . ." For a quick study, go here: https://haedickelaw.com/2010/09/19/prior-bad-acts…

This is roughly the rule applied in the so-called "Brides in the Bath" case, Rex v. Smith, 11 Cr. App. R. 229, 84 L.J.K.B. 2153 (1915). As described here: "Evidence of other similar happenings that might be only marginally probative if considered in isolation can become highly probative when considered in conjunction. The logic that applies is called the "doctrine of chances.'" http://homepages.law.asu.edu/~kayed/class/evidenc…

Romney pointed out one kind of a confusion of principles, when a standard relevant to a courtroom is applied to a political contest. A similar confusion occurs with respect to the First Amendment, when a standard of freedom of speech binding on the government is applied to commercial speech in which citizens choose not to patronize a business which pays money to sponsor an objectionable speaker. If the Keurig coffee machine company declines to sponsor Sean Hannity, they are not doing anything to abridge his freedom of speech, the outrage of Trumpheads notwithstanding.

What's the difference between Luther Strange and Roy Moore wrt policy? Is Strange's love of guns, disdain for LGBT folk, love of tax cuts, hatred of immigration any different from Moore's? I don't think so, and Bannon's endorsement didn't mention any policy issues on which Strange was allegedly weak. Did the voters perceive a difference? Doubtful.

So why favor one Tweedle-Dum over another? Well, Moore is openly bigoted (which of course was not a disqualification in the opinion of most GOP senators), and he's openly stupid and defiant of authority. From Bannon's perspective, that means he's a perfect partner in the destruction of America. From 'bama voters' perspectives, it means that liberals really hate Moore, but seem indifferent to Strange. Defying liberals is what they're all about.

Forget shooting someone on Fifth Ave. (Do they have one in Birmingham?) Roy Moore could advocate tax increases for the wealthy and cuts for the poor and get elected in Alabama. Am I wrong? Well, they voted in droves for a President who promised to do just that. He's almost as popular with them now, when most of them must know that Trump wants to reward the rich, as he was last November. The constant is his bigotry and ability to anger liberals. This may not be a winning strategy nationwide in 2018, but he, and Moore, can count on Alabama.

I don't feel especially inclined to be fair to Moore because I think the evidence strongly indicates he's lying and the women are telling the truth. It's a missed issue in fact that he's lying today, now, and this goes beyond the issue of misdeeds from many years ago to the present day character of the man.

But, to be fair, his saying he didn't know Corfman, isn't completely inconsistent with having met her once on the courthouse steps, spent a few minutes with this young girl whose name he didn't pay much attention to, and then never seeing her again and forgetting the whole incident. That particular encounter could've happened and Moore forgot about it. The rest though is clearly contradictory and the women and corroborating witnesses far more believable.

Why should Moore remember these girls? They were not really people that mattered to him as individuals worth remembering. Hell, I don't remember every person I stood behind in the grocery line in 1979. I don't even remember the cashiers who checked me out when I bought bread and milk that year.

Jonah Goldberg, of all people, pointed out that the immediate reaction of national GOP politicians was 'if proven, he should step down'. The immediate reaction of many Alabama state-level GOP officials was 'better than a Democrat'.

Given the rumors now surfacing, it's highly likely that they *knew*. They didn't have conviction-level evidence, but the circumstantial evidence was strong.

More was an assistant DA at the time. Does this make a difference, on the Caesar's wife principle?

The accusations indicate three crimes: sexual assault on Leugh Corfman as a child aged 14; attempted rape of Beverly Nichols aged 16; and procuring alcohol for Gloria Deason aged 18, below the legal drinking age. Assume al these accusations are true. The first two are straightforward crimes, and Moore's status as a law enforcement officer could only be relevant to sentencing. The alcohol case is more complex. You could argue that the law is unenforceable and excessive; you could argue that plying young women with alcohol is characteristic of sexual predators, who should be deterred. At all events, it's an area where prosecutors should exercise some discretion on whether to file charges. In this case, Moore was both a prosecutor himself and a probable sexual predator. If you are going to prosecute anybody for this offence, he would be your poster child.

More was an assistant DA at the time. Does this make a difference, on the Caesar's wife principle?

The accusations indicate three crimes: sexual assault on Leigh Corfman as a child aged 14; attempted rape of Beverly Nichols aged 16; and procuring alcohol for Gloria Deason aged 18, below the legal drinking age. Assume all these accusations are true. The first two are straightforward crimes, and Moore's status as a law enforcement officer could only be relevant to sentencing. The alcohol case is more complex. You could argue that the law is unenforceable and excessive; you could argue that plying young women with alcohol is characteristic of sexual predators, who should be deterred. At all events, it's an area where prosecutors should exercise some discretion on whether to file charges. In this case, Moore was both a prosecutor himself and a probable sexual predator. If you are going to prosecute anybody for this offence, he would be your poster child.

People are convicted of rape on "he said-she said" all the time. A relative of mine spent two decades in prison on just that evidence. (I have no idea what the truth of the matter was, and he was so strung out at the time he probably doesn't know himself.) If the evidence we have now, and nothing else, was presented to a jury and a jury decided to convict, the verdict would stand up on appeal. Prosecutors, who are risk-averse and like to win, might want more before bringing a case, but if they have the stones to take it to trial anyway, they could win. Of course, they could lose, and a jury might acquit, which would be the jury's prerogative. We the public know as much as a jury would and, based on what's known now, we have as much right to decide what to believe as a jury would.

We the public do not know as much as the jury would. The jury would see each witness's demeanor and how he or she stood up to cross-examination. But, of course, we nevertheless have the "right" to decide what to believe, whatever that means.

The jury wouldn't "know" any more than we do, even after watching cross-examination. They just get to decide, that's all. They can come to any conclusion they want about credibility and decide whom to believe. What matters is that what is already before the public would be legally sufficient to support a conviction, so talk about whether Moore has been proved guilty beyond a reasonable doubt really doesn't mean any more than that no jury has been asked to decide that yet. That's not the same as saying the evidence isn't good enough.